Extension of H1B after Applying I140 and I485?

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florida2004

Registered Users (C)
Hi All,

I have been reading the posts of this Forum for a while.
It's really great and informative for any immigration issues.

I am in H1B VISA for last four and half years and it is going to expire in Jan 01, 2005. As per law, I could extend it for another one and half year. Last month my husband got his LC approval. On Nov 10th, 2004(last week), we both applied for I140 and I485(concurrent filing) through my husband's employer.

Currently I am working with the same employeer of my husband. I may not get my EAD befoer Jan 01, 2005. Do I need to apply for my H1B extension?

I would appreciate the expert advise in this matter.

Regards,
Mamata
 
You do need either your H1 or EAD to keep on working.
But it's not a good idea to extend H1 while AOS which is of a higher rank is already pending. Better wait for EAD, if you dont get it, go to the local office and get an interim EAD after the 90 days period.
And further if you do decide to extend H1 it will probably take more time compared to the time you have to wait for EAD. So it's not wothy.
Good luck.
 
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Hi NBC_June04/usnycus,

It was nice to get your reply. Thanks a lot for your quick response.
I really appreciate it!!!

I am still worried about it. Please clear the following:

My H1B will expire on Jan 01,2005. Since I have applied for I140 and I485 on second week of november 2004, I may get my EAD in second or third week of FEB 2005, which is approximately 90 days.

If I apply for H1B extension before Jan 01,2005, I am eligible to continue working on the same job even if I don't get the EAD or receipt of the extension.

I am really worried about the gap between the date of H1B expiration(Jan 1, 2005) and receipt of EAD(may be second or third week of FEB).

Is there any problem, If I continue working for that period in my current job, even if I don't have EAD and I have not applied for H1B extension?

FYI: My husband and I are working in the same company. The company has originally applied for my husband and after labour, it added my papars for I140 and I485.

Thanks in advance.
 
Something else - once you use the EAD (after you get it) you'll jeopardise the rights under H1 and will immediately be considered AOS. Either or is legal, so dont worry. Depends on your choice.
 
So, Is it a better option for me to apply for H1B extension?

or

Continue working till I get the EAD(may be mid Feb 2005) without H1B extension?

What could be the problem, If I continue working till I get the EAD(may be till mid Feb 2005) without H1B extension? Is that illegal?

or

Do I have to leave the job till I get the EAD?
 
Basically, I want to know if there is any problem, If I continue working in the period between Jan 1, 2005 to Mid Feb 2005 without H1B extension or EAD. I will be continuing with my current employer(the same employer who filed the I140 and I485 for my husband and me.)
 
I am in H1B only for four and half year. I could extend my H1 for another one and half year.

So, do you suggest me to just apply for H1B extension to continue working till I get my EAD?

If I apply for H1B extension after I apply for I140/I485(concurrent filing), Is that going to affect my I140/I485 approval?
 
Suppose I apply for H1B extension before Jan 1, 2005. It woudl take atleast 3/6 months to get the H1B extension approval.

In the mean time, If I get my EAD before the H1B extension approval notice, what would be my status?

What should I use? EAD or H1B approval?

Then when i get the H1B approval, my status would be H1B visa or Green card EAD status?
 
If you keep on working on your H1 extension, you'll be H1 with pending AOS.
If you choose to use the EAD then you loose your H1 status immediately. Your category will be "Adjustment of Status" and you are still LEGAL.
H1 and EAD - both are legal, with the one difference that the time you choose the EAD H1 will be automatically voided.
You'll be legal to work for the period EAD is issued.
H1 pending ext or EAD usage- it all depends on you choice. Both furnish legal status.

Further, united nations told you that you can keep on working with pending H1 ext. When you get EAD while the pending H1, you are free to use it. In this case there's no interruption and waiting time for you! Good luck
 
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Hi NBC_June04, unitednations and others,

I really appreciate your comments. I was confused. Now I really think I should go for H1B extension.

I was worried about working in the period without h1B extension and EAD, even if that is for a month or so. I also think, it may get delayed. You never know.

We spoke with our attorney on last monday. He is an experienced attorney. We have been working with him for last 5 years. He said, I would be geting my EAD in 90 days and I could continue working without H1 extension till I get the EAD. Nobody cares for it.

But now I feel I should not take any chance in VISA matters.

Thanks once again guys. You are really helpful.
 
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florida2004 said:
Hi NBC_June04, unitednations and others,

I really appreciate your comments. I was confused. Now I really think I should go for H1B extension.

I was worried about working in the period without h1B extension and EAD, even if that is for a month or so. I also think, it may get delayed. You never know.

We spoke with our attorney on last monday. He is an experienced attorney. We have been working with him for last 5 years. He said, I would be geting my EAD in 90 days and I could continue working without H1 extension till I get the EAD. Nobody cares for it.
... I am not sure what to say about your attorney who is saying work without USCIS approval. If I were you, I will rather stay home and not work. Apply for H1 extension then you will be safe.

I strongly suggest you not to work if you don't apply for H1 extension and EAD is pending. It's a big risk and may cost you GC.


But now I feel I should not take any chance in VISA matters.

Thanks once again guys. You are really helpful.
Click to expand...
 
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I totally agree with usnycus.
There we go, another ignorant lawyer. How can he give you advice to work without EAD or Filed H1 ext. :eek: That's just rediculous, girl. It can jeopardize your green card. Goodness

Nobody cares???????? WHAT??? :eek: That's overflowing already. In this case why do we need EAD since nobody cares? I know there are thousands of illegal immigrants out there. But that's not the matter of this forum at all. I would fire him girl. Or if you keep on contracting him, better double and triple check all "legal" advices he gives you like you do in this forum now.
Just file for an H1 ext you'll be fine until you get EAD.
 
Thanks.

He says....I could work because it's the same employeer. Since he is saying there is no need to appy for H1 extension, I can not force him to do so. If there would be any problem in GC in future after applying H1B, he would blame everything on us. That's the problem.

The only thing I could think of now, conatct other attorneys and see what they say. If they suggest to go to H1B, I have something to say to our attorney.

What do u suggest?
 
FYI: I am a permanent employee of the same company. I am not a contractor.
This is the same attorney worked on all the H1 in our company including mine, my husband and some other colleagues and working on processing GC also.

He is saying, your company is not going to remove you just for one and half month since you don't have EAD or H1 extension. You could continue. After 90 days, if you don't get EAd, you could go to your local office and get one.

Only thing I could do is contact one or two different attorney and ask for suggestions. I would do this this week itself and keep you posted.

Thanks.
 
It depends on your decision. None of us here is an attorney and gives advice by own experience or interpreting the law.
In this case it doesnt matter that you've been a permanent employee of the same company.
After H1 expires in Jan 2005 your status is simply AOS. And the only way you can work legally is through EAD unless you meanwhile file for H1 ext and keep on working with pending H1 ext until getting EAD. That's indiscussable. That's what the Immigration Law says.
The gap between you getting EAD and H1 end must be legally furnished in some way (either pending H1 ext or if lucky- getting sooner EAD).
I mean I've seen people in the forum. Their H1 expires on 29Sep and they are supposed to get the EAD on 1 Oct. Even that 1 day period (30 Sep) is considered by the law illegal working, because of lack of a document that can furnish one way or another authorization to work legally in this country.
However, you trust your laweyr obviously, and nobody here presses you to do whatever. Just several unprofessional advices by guys who have read a lot ot have gone trough the same or similar situation. We might be wrong. We are not laweyrs.
At least, get a consultation with other attorneys.
Good luck girl!
 
florida2004 said:
OK. Thanks Guys.

I would consult one or two different attorneys and keep you posted.
Click to expand...
If you browse the forum you'll see other guys like you. Working on H1 with one and the same employer, H1 expires, and the employer gives them a period ( keep their position, until they get EAD to come back and start working again.
 
Does that mean, I should not get any paycheck for that period?

What about the health insurance? My employer is paying for that now. DO I have to discontinue that too?

Also, do the employer has to start everything(paychecks, insurance and other benefits) for me as a new employee once I get the EAD?
 
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